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Merit review WC016/18

Findings on review

The worker has “no current work capacity” as defined in section 32A of the Workers Compensation Act1987 (the 1987 Act).

The worker meets the requirements of section 38(2) of the 1987 Act and is entitled to weekly payments of compensation at the rate under section 38(6) of the 1987 Act.

Recommendation based on findings

The following recommendation is binding on the Insurer and must be given effect to by the Insurer under section 44BB(3)(g) of the 1987 Act.

The Insurer is to determine the worker’ entitlement to weekly payments of compensation from August 2017 and pay the difference to what they have been paid and what they are entitled to be paid (subject to any notice provisions) in accordance with the findings above.

Background

The worker sustained an injury in 2014 working for the pre-injury employer.

In August 2017, the former insurer made a number of work capacity decisions. It found that the worker was able to return to work in suitable employment and that they had current work capacity. The former insurer also decided to reduce the worker’ entitlement to weekly payments of compensation to $220.20.

The worker referred the work capacity decisions for internal review by the Insurer (current). In February 2018, the Insurer decided to reduce the worker’ entitlement to weekly payments of compensation to $108.50.

The worker’ application for merit review was received by the State Insurance Regulatory Authority (the Authority) in February 2018. The application has been made within 30 days, as required under section 44BB(3)(a) of the 1987 Act.

Legislation

The legislative framework governing work capacity decisions and reviews is contained in the:

Workers Compensation Act 1987

Workplace Injury Management and Workers Compensation Act 1998

Workers Compensation Regulation 2016

Section 43 of the 1987 Act describes a “work capacity decision”.

Section 44BB of the 1987 Act provides for merit review of a work capacity decision of the Insurer, by the Authority.

Information considered

The information I have considered for this review are the application for merit review and the Insurer’s reply form, the documents listed in and attached to those forms, and any further information provided to the Authority and exchanged between the parties.

Documents considered

The documents I have considered in this review are those listed in, and attached to, the application for merit review, the Insurer’s reply and any further information provided by the parties.

I am satisfied that both parties have had the opportunity to respond to the other party’s submissions and that the information provided has been exchanged between the parties.

Submissions

In the application for merit review, the worker submits:

All their doctors and specialists say that they can never work more than 2 hours a day, 2 days per week. They are forever permanently disabled and only the Insurer [has found] that they can work 5 hours a day, 5 days a week, against doctors’ orders.

The Insurer is using a WorkCover certificate that was “done” without them being present and behind their back.

They were on a work trial when they got burnt, which the Insurer refuses to acknowledge. They read a report about their history and capacity and it is mostly lies fraudulently made up. Both the occupational rehabilitation provider and the then treating doctor have written lies about them in an attempt to defame their character.

“All of this work capacity decision revolves around one doctor’s certificate dated xx/07/2017. That the rehabilitation consultant and the doctor fradulated [sic] without me even there. Then [the doctor] reduced me to 2 hrs a day 2 days a week after getting my MRI results the same day.”

In reply, the Insurer submits (in summary):

The previous Insurer managing the claim made a work capacity decision in August 2017, finding the worker had capacity for suitable employment and reduced their entitlement to $220.20 per week.

The worker continues to have capacity for work as per the original work capacity decision. This is supported by the medical certificate issued by the then treating doctor in August 2017.

Orthopaedic surgeon confirms that the worker has capacity for work but is to avoid kneeling, squatting or climbing and heavy lifting – by report dated November 2017. This was confirmed by a functional capacity assessment, carried out by the occupational rehabilitation provider in February 2017.

The worker was successful in obtaining a role as a farm hand / caretaker with the ‘Farm’ working up to 25 hours per week from January 2017 and ongoing.

To ensure the worker’s safety in this role a Workplace Assessment was arranged. This role was confirmed as suitable for the worker and signed off by the then treating doctor in July.

A Labour Market Analysis carried out by the occupational rehabilitation provider confirms the earning potential of a Farm Hand/Caretaker to be $868.68 per week.

The worker has demonstrated an ability to work 25 hours per week in their role with the Farm since January 2017, in a work for board arrangement with the employer. This equates to an earning capacity of $571.50 per week based on a 25 hour week.

The worker suffered a burn injury whilst in the course of their employment in December 2017 at the Farm. This injury resulted in their incapacity for work until January 2018.

The worker was not on a worktrial and as such any injuries sustained in their employment with the Farm are not considered compensable under this claim.

The decision on internal review reduced the worker’ earnings to $108.50.

Reasons

Nature of merit review

This matter involves a merit review of the work capacity decisions of the Insurer in accordance with section 44BB(1)(b) of the 1987 Act. The review is not a review of the Insurer’s procedures in making the work capacity decisions and/or decisions on internal review. The review requires that I consider all the information before me substantively on its merits and make findings and recommendations that, in light of the information before me, are most correct and preferable.

Current work capacity

The worker was employed by the pre-injury employer in early 2014. They would drive a truck and operate front end loaders, backhoes and trenching machines.

The worker suffered an injury in 2014 while at work. It happened when they were removing and replacing the “bore head” of a large pump on a mine site. The worker had slipped and fallen twisting their right knee. They described experiencing severe pain.

A medical assessment carried out at the local hospital revealed a lateral ligament injury and tear of the lateral meniscus. The worker was prescribed pain relief and rested from work. They have had two right knee arthroscopies, physiotherapy and exercise physiology to treat the injury.

The worker has referred the Insurer’s decision that they have “current work capacity” for merit review. I am required to refer to the definitions under section 32A of the 1987 Act to make a finding on whether the worker has “current work capacity” or “no current work capacity”:

current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment

no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment

These definitions require findings on whether the worker can return to work in their pre-injury employment and in suitable employment.

Pre-injury employment

The worker does not dispute the Insurer’s decision they have a present inability arising from an injury such that they are not able to return to work in their pre-injury employment. I will proceed on this basis.

Suitable employment

“Suitable employment” is defined in section 32A of the 1987 Act as:

Suitable employment, in relation to a worker, meansemployment in work for which the worker is currently suited: having regard to:

the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and

the worker’s age, education, skills and work experience, and

any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and

any occupational rehabilitation services that are being, or have been, provided to or for the worker, and

such other matters as the WorkCover Guidelines may specify, and

regardless of:

whether the work or the employment is available, and

whether the work or the employment is of a type or nature that is generally available in the employment market, and

the nature of the worker’s pre-injury employment, and

the worker’s place of residence.

The worker has also referred for merit review the Insurer’s decision that employment as a mixed crop and livestock farm worker constitutes suitable employment for them.

Mixed crop and livestock farm worker

The occupational rehabilitation provider addresses this role in its labour market research assessment report dated July 2017. Reportedly, employees may:

patrol, inspect and repot on the condition of crops and livestock

operate farm machines

maintain and repair buildings, machines, fences, plant and water systems

load and unload seed grain, fertilisers and livestock feed

irrigate land for crop growth

assist with maintaining the health and welfare of livestock

muster and drove livestock

It contacted three employers who described that a “farm hand” has similar duties and tasks.

In assessing whether employment is “suitable employment” for the worker, I am required to have regard to the nature of their incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by them.

The medical certificate dated January 2017 certified the worker with the capacity to work “suitable duties” lifting up to 10 kilograms, standing or sitting up to 30 minutes with no bending, twisting, squatting, pushing, pulling or operating machinery and heavy vehicles.

An independent medical examiner and orthopaedic surgeon, examined the worker in February 2017. In the report dated November 2017, they advised that the worker would have a reduced capacity for work because of persisting pain and instability in the region of the right knee. They declared the worker “incapacitated for anything that requires heavy lifting or squatting or climbing or running or jumping” and advised that the worker cannot engage in unrestricted heavy labouring work or machine operating work.

The physiotherapist facilitated a functional assessment of the worker in February 2017. They noted their recommendation that the worker could work 8 hours per day, 5 days per week at a “Light” level. They also assessed the worker with the capacity: walk occasionally, stand occasionally up to 20 minutes per hour and sit frequently up to 40 minutes per hour.

In May 2017, the then nominated treating doctor certified the worker with “no capability for any type of work” after a medical review.

Then in July 2017, they certified the worker capable of working 5 hours per day, 5 days per week. They also certified the worker capable of lifting “about” 10 kilograms, with “no issues” sitting, standing, pushing, pulling, bending or twisting and recommended the worker avoid squatting.

Their further certificate in August 2017 was issued in the same terms except reducing the hours that the worker could work to 4 per day.

The worker’s treating physiotherapist, wrote a letter describing how the worker had a painful episode most likely because of horse riding. Reportedly, the worker’ symptoms included excess pain of the lateral quadriceps muscle during palpation. The worker’ treating exercise physiologist, co-signed the report.

The report is undated however a facsimile transmission date stamps it as being sent in August 2017. In considering the date, the Insurer assumes it was sent on that day but “the fax machine could have been incorrectly programmed.” Doing the best I can on the information before me, I consider it most likely the report was prepared on, or close to, that date.

The treating physiotherapist described in the report that the worker presented with decreased range, increased pain and slight joint swelling [of the right knee]. They diagnosed the worker with joint effusion and moderate bursitis due to the over activation of the hamstring, which resulted in altered biomechanics increasing lateral quadriceps activation thus altering the patella tracking. They said that the worker had continued with strengthening exercise, improving “until this event.”

The nominated treating doctor then reviewed the worker and issued certificates in August and September 2017. Both the certificates certified the worker with the capacity to work 4 hours per day, 4 days per week. They also recommended the worker could lift or carry 10 kilograms at a time, stand for “about” half an hour, and minimally push, pull or drive, and advised that the worker could not sit, bend, twist or squat.

The worker underwent an MRI of the right knee in September 2017. The radiologist interpreted the MRI and commented there is “evidence of recent partial rupture of a small Baker’s cyst. Complex tear posterior horn and body lateral meniscus. Minor cartilage loss from the medial femoral condyle.”

In December 2017, the nominated treating doctor issued a certificate that detailed the radiologist’s comments and that a “referral to surgeon” is a factor delaying recovery. They certified the worker with the capacity to work 2 hours per day, 2 days per week and maintained the other recommendations provided in the previous certificate dated September 2017.

The current nominated treating doctor issued the subsequent certificate in January 2018. The worker was certified with “no current work capacity for any work.”

The Insurer submits the worker suffered a burn injury during their employment working with the Farm in December 2017. It is submitted this injury resulted in the incapacity for work until January 2018.

However, the current nominated treating doctor wrote a letter to the Insurer in January 2018 stating “in my opinion [The worker] is suffering from secondary depression and was not able to work. [The worker] is still complaining of ongoing pain right knee.”

Then in February 2018, they certified the worker with capacity to work 2 hours per day, 2 days per week. They also certified the worker capable of lifting, pushing or pulling 10 kilograms and standing for 10 minutes, but having nil capacity for bending, twisting, squatting, sitting or driving.

I find the current opinions of both the treating doctors persuasive. They provide the only medical assessment of the worker’ capacity after the treating physiotherapist described a painful episode that had caused swelling, a decrease in strength and increased symptoms for the worker. Both the treating doctors also provide the only assessments following the MRI report that revealed the worker had a recent partial rupture of a small baker’s cyst.

On balance, I accept the recommendations of both the treating doctors that the worker has had the capacity to work, at most, 2 hours per day, 2 days per week since December 2017.

I also that find that since August 2017, consistent with the recommendations of both the treating doctors, the worker has been able to lift or carry 10 kilograms at a time, stand for between 10 minutes to “about” half an hour, and “minimally” push, pull up to 10 kilograms. I also accept that the worker has not been able to sit, bend, twist or squat since September 2017.

Further, I consider some other of the earlier expressed medical opinions useful when assessing if the role constitutes suitable employment for the worker. Those opinions will be discussed further below where relevant.

The three employer representatives contacted by the occupational rehabilitation provider advised that employees work between 25 and fulltime hours per week. In my view, the medical information does not support that the worker can currently work those hours. I consider their current capacity to work is limited to 2 hours per day, 2 days per week.

I again note that the occupational rehabilitation provider generally describe how employees may operate farm machines to cultivate, plant, fertilise, spray and harvest field crops. Such type of work is described as a “key” duty by all three employers contacted. In my view, the medical information does not support the worker is suited to such “key” duties. The worker is certified that they cannot operate plant equipment. The independent medical examiner also stated the worker cannot engage in machine operating work. I accept these earlier opinions given they do not conflict with the medical opinions given by both the treating doctors. Also in my view, the medical information supports a finding that the worker’ current capacity has deteriorated since the first half of 2017.

I have accepted the current recommendations of both the treating doctors that the worker has no capacity to sit. However, the employer representatives all state that sitting is required in the role.

The former treating doctor certified the worker’s standing tolerance to be “about” 30 minutes. The current nominated treating doctor recommends it is 10 minutes. The rehabilitation consultant assessed the worker to have a standing tolerance of up to 20 minutes per hour. All employers state standing is required in the role, however there is no indication for how long. I do not consider the medical information supports that the worker could adhere to a 10 to 30 minute standing recommendation when feeding animals, repairing fences, maintaining water pipes, running irrigation or working in large paddocks.

In light of the above, I am not satisfied the worker is suited to employment as a mixed crop and livestock farm workerhaving regard to the nature of their incapacity and the details provided in the medical information.

I note that since January 2017, the worker has assisted with farm hand duties on a property.

The occupational rehabilitation provider prepared a workplace assessment report in July 2017 that detailed the requirements of the work that the worker has completed on the property.

Reportedly, “the workplace duties as a Farm Hand were reported and demonstrated by the worker and medically endorsed by the treating doctor.” I also note that the worker had earlier stated to the independent medical examiner that they can manage their work at the property without difficulty.

However, in assessing if the role “currently” constitutes suitable employment for the worker, I am required to have regard to the nature of their incapacity and to any plan or document prepared as part of the return to work planning process.

The occupational rehabilitation provider prepared a return to work plan in July 2017 in consultation with the worker, the then treating doctor and the property owner where the worker works. All parties agreed to the worker working 5.5 hours per day, 5 days per week. It was also agreed that the worker would avoid full squatting, that they could take seated rest breaks when required and their lifting and carrying would not exceed 10 kilograms. The agreed duties included feeding animals, quad bike operation, tractor operation, fence repair and maintenance, water pipe maintenance, driving a vehicle to collect stock and animal husbandry.

However, I consider that the worker’ capacity for employment has deteriorated since July 2017 as indicated by the treating physiotherapist, the recent MRI and as supported by both the treating doctors. There is no information before me that the property owner can support the worker’s current capacity for work. This includes the hours and days they can work and the tasks they can perform.

For instance, the workplace assessment describes how “constant” dynamic standing is required to maintain fences. Constant is defined by the occupational rehabilitation provider to mean 67-100% of the day. Tractor operation requires “constant sitting” and collection of feed stock requires “driving approximately 30 – 40 minutes each way.” Currently, both the treating doctors do not support that the worker has the capacity to undertake these tasks or work 5.5 hours per day, 5 days per week.

In my view, the information does not support a finding that the worker is currently suited to employment as a farm hand at the property they reside in (for example, information such as an updated return to work plan agreed to by the property owner and a health practitioner) having regard to the nature of their incapacity.

Sales assistant (general) and process worker (light)

Before me is a labour market research report prepared by the occupational rehabilitation provider in November 2016. It addresses the vocational options of sales assistant (general) and process worker (light).

The Insurer did not make any findings as to whether these roles constitute suitable employment for the worker. I will briefly address each.

Reportedly, a sales assistant (general) “frequently stands” at sales counters or walks about the establishment to assist customers and locate merchandise. A stool may be offered to employees so they can sit. In my view, the current medical information does not support the worker has the capacity to frequently stand or the capacity to sit. Further, employers in the labour market indicate the hours of work are between 12 and 38 per week. I consider the current medical information does not support that the worker is suited to work more than 2 hours per day, 2 days per week.

Reportedly, a process worker (light) “requires occasional, frequent and constant standing, walking and sitting.” Again, in my view the current medical information does not support the worker is suited to frequent and constant standing or sitting in employment. The employers also indicated that employees work between 8 and 38 hours per week. I consider this also exceeds the worker’s current capacity.

In light of the above, I am not satisfied that the worker is suited to employment as a sales assistant (general) or employment as a process worker (light) having regard to the nature of their incapacity.

Findings on suitable employment and current work capacity

In considering the information before me and section 32A of the 1987 Act, I am not satisfied employment as a mixed crop and livestock farm worker, sales assistant (general) or as a process worker (light) is “suitable employment” for the worker.

I am satisfied the worker has a present inability arising from an injury such that they are not able to return to work, either in their pre-injury employment or in suitable employment.

I therefore find the worker has “no current work capacity”.

Continuation of weekly payments after second entitlement period

Under section 38(1) of the 1987 Act, the worker’ entitlement to weekly payments of compensation ceases after the second entitlement period (after 130 weeks of weekly payments) unless they are entitled to weekly payments under section 38 of the 1987 Act.

There is no dispute that the worker is now after the second entitlement period and I proceed on that basis.

A worker with “no current work capacity” is only entitled to weekly payments of compensation under section 38 of the 1987 Act if the following special requirement is met:

A worker who is assessed by the Insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.

I have found that the worker has no current work capacity and noting the matters to which I have referred to in these reasons, I find that they are likely to continue indefinitely to have no current work capacity (that is, for the foreseeable future, or until such time there is adequate information to support they are able to return to work in “suitable employment” as defined in section 32A of the 1987 Act).

I find that the worker meets the special requirements under section 38(2) of the 1987 Act to be entitled to weekly payments of compensation. Therefore, they are entitled to weekly payments at the rate provided by section 38(6) of the 1987 Act.

Merit reviewerMerit Review ServiceDelegate of the State insurance regulatory authority